Citation Nr: 0513767
Decision Date: 05/19/05 Archive Date: 06/01/05
DOCKET NO. 03-11 341 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Portland,
Oregon
THE ISSUE
Entitlement to an initial compensable rating for bilateral
hearing loss.
REPRESENTATION
Veteran represented by: Oregon Department of Veterans'
Affairs
WITNESSES AT HEARING ON APPEAL
The veteran and a friend
ATTORNEY FOR THE BOARD
K. Conner, Counsel
INTRODUCTION
The veteran served on active duty from November 1982 to
September 1985.
This matter comes to the Board of Veterans' Appeals (Board)
from a March 2002 rating decision of the Department of
Veterans Affairs (VA) Regional Office (RO) in Portland,
Oregon, which granted service connection for bilateral
hearing loss and assigned an initial zero percent rating,
effective August 27, 2001. In March 2004, the veteran and
his friend testified before the undersigned Veterans Law
Judge at the RO. In August 2004, the Board remanded the
matter for additional evidentiary development.
It is noted that the issues originally on appeal included
entitlement to service connection for exposure to asbestos
and ionizing radiation, entitlement to an initial rating in
excess of 10 percent for bilateral tinnitus, and entitlement
to an effective date earlier than August 27, 2001, for the
award of service connection for bilateral tinnitus and
hearing loss. In a September 2003 statement, however, the
veteran withdrew his appeal of these issues. Accordingly,
the Board finds that such matters are no longer within its
jurisdiction. See Hamilton v. Brown, 4 Vet. App. 528 (1993)
(en banc), aff'd, 39 F.3d 1574 (Fed. Cir. 1994) (holding that
the Board is without the authority to proceed on an issue if
the veteran indicates that consideration of that issue should
cease); see also 38 C.F.R. § 20.204 (2004).
FINDING OF FACT
Since the effective date of the award of service connection,
repeated audiological evaluations have shown that the veteran
has, at worst, Level I hearing in the right ear and level III
hearing in the left ear.
CONCLUSION OF LAW
The criteria for an initial compensable rating for bilateral
hearing loss have not been met. 38 U.S.C.A. §§ 1155, 5107
(West 2002); 38 C.F.R. § 4.85, Diagnostic Code 6100 (2004).
REASONS AND BASES FOR FINDING AND CONCLUSION
As a preliminary matter, the Board finds that VA has
satisfied its duties to the veteran under the Veterans Claims
Assistance Act of 2000 (VCAA). In October 2001 and September
2004 letters, the RO notified the veteran of the information
and evidence needed to substantiate and complete his claim,
and of what part of that evidence he was to provide and what
part VA would attempt to obtain for him. 38 U.S.C.A. §
5103(a) (West 2002); 38 C.F.R. § 3.159(b)(1) (2004);
Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). The
letters also advised the veteran that VA would assist him in
obtaining any additional information that he felt would
support his claim. Pelegrini v. Principi (Pelegrini II), 18
Vet. App. 112 (2004).
Under the VCAA, VA also has a duty to assist claimants in
obtaining evidence needed to substantiate a claim. 38
U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159(c) (2004).
In this case, the veteran's service medical records are on
file and the RO obtained all available post-service VA and
private medical records identified by the veteran.
38 U.S.C.A. § 5103A(c) (West 2002); 38 C.F.R. § 3.159(c)(2),
(3) (2004). Moreover, the veteran has been afforded two VA
medical examinations in connection with this claim. The
examination reports provide the necessary medical opinion.
For the reasons set forth above, and given the facts of this
case, the Board finds that no further notification or
development action is necessary. 38 U.S.C.A. § 5103A(d)
(West 2002); 38 C.F.R. § 3.159(c)(4) (2004).
I. Factual Background
The veteran's service medical records show that at his
October 1982 service enlistment medical examination,
audiological evaluation showed pure tone thresholds, in
decibels, as follows:
HERTZ
500
1000
2000
3000
4000
RIGHT
5
5
5
5
0
LEFT
5
0
0
5
5
At his August 1985 October 1982 service discharge medical
examination, audiological evaluation showed pure tone
thresholds, in decibels, as follows:
HERTZ
500
1000
2000
3000
4000
RIGHT
15
5
5
5
15
LEFT
15
15
10
20
35
In August 2001, the veteran submitted an application for VA
compensation benefits, seeking service connection for several
disabilities, including bilateral hearing loss.
In support of his claim, the veteran was afforded a VA
medical examination in March 2002, at which he reported that
he had developed decreased hearing acuity during service
secondary to acoustic trauma. He indicated that he had
difficulty understanding speech in noisy environments.
Audiometric testing revealed pure tone thresholds, in
decibels, as follows:
HERTZ
500
1000
2000
3000
4000
RIGHT
5
10
55
60
65
LEFT
5
20
55
65
60
Average puretone thresholds, in decibels, were 48 in the
right ear and 53 in the left ear. Speech audiometry revealed
speech recognition ability of 96 percent correct,
bilaterally. The diagnoses included high frequency
sensorineural hearing loss secondary to acoustic trauma in
service.
In a March 2002 rating decision, the RO granted service
connection for bilateral hearing loss and assigned an initial
zero percent rating, effective August 27, 2001. The veteran
duly appealed the RO's decision, arguing that he was entitled
to an 80 percent rating for bilateral hearing loss. He
indicated that because he did not have hearing aids, he was
not able to hear at an amplified level, as he did during the
VA audiometric examination.
In support of his appeal, the veteran submitted an August
2002 private audiometric examination report showing average
puretone thresholds, in decibels, of 36 in the right ear and
43 in the left ear. Speech recognition ability was of 96
percent on the right and 80 percent on the left.
In a September 2002 statement, the veteran's mother indicated
that the veteran had hearing loss and that many times he did
not acknowledge her when she spoke to him.
In a September 2002 statement, the veteran's former domestic
partner indicated that without amplification, the veteran
could not hear well at all.
VA clinical records show that in October 2003, the veteran
was seen for a hearing evaluation and to discuss possible
options for new hearing aids. It was noted that he had
moderate to severe sensorineural hearing loss in the right
ear, and mild to severe sensorineural hearing loss in the
left ear. It was noted that the reliability of the
audiometric test results were considered only fair due to
poor SRT/PTA agreement, 10 to 15 decibel increases in pure-
tone response from only one year prior, and better
conversational speech ability than the current pure-tone
hearing loss would suggest. As a result, the examiner
indicated that the audiometric data should not to be used for
rating purposes. Subsequent clinical records show that in
February 2004, the veteran was issued bilateral hearing aids
and reported an improvement in his ability to hear
conversations.
In March 2004, the veteran and his former domestic partner
testified at a Board hearing at the RO. The veteran
testified about the severity of his hearing loss and
indicated that he felt that it presented a serious barrier to
his success in employment. The veteran claimed that he had
"basically" been let go from his job as a roofer due to his
hearing loss. He explained that his boss told him to do
something and "it didn't get done [because] I never really
heard him tell me that." The veteran indicated that he was
either let go as a result of that incident or due to another
"misunderstanding." Since that time, he indicated that he
had worked part time, but claimed nobody wanted to hire him
due to his hearing loss. The veteran testified that he had
recently acquired hearing aids which had aided his social
life tremendously, but did not help him with his employment.
The veteran's former domestic partner testified that the
veteran's hearing loss had negatively impacted their
relationship.
In September 2004, the veteran again underwent VA medical
examination at which he reported decreased hearing acuity
during and since his active service. The examiner noted that
she had reviewed the veteran's claims folder in conjunction
with her examination of the veteran.
Audiological evaluation showed that pure tone thresholds, in
decibels, were as follows:
HERTZ
500
1000
2000
3000
4000
RIGHT
10
15
60
65
70
LEFT
10
20
60
65
70
Average puretone thresholds, in decibels, were 53 in the
right ear and 54 in the left ear. Speech audiometry revealed
speech recognition ability of 94 percent, bilaterally. The
diagnoses included high frequency sensorineural hearing loss
with good word recognition.
II. Laws and Regulations
Disability evaluations are determined by the application of a
schedule of ratings which is based on average impairment of
earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4.
Separate rating codes identify the various disabilities. 38
C.F.R. Part 4. Where there is a question as to which of two
evaluations shall be applied, the higher evaluation will be
assigned if the disability picture more nearly approximates
the criteria required for that rating. Otherwise, the lower
rating will be assigned. 38 C.F.R. § 4.7 (2004). Any
reasonable doubt regarding the degree of disability is
resolved in favor of the veteran. 38 C.F.R. § 4.3 (2004).
The determination of whether an increased evaluation is
warranted is to be based on review of the entire evidence of
record and the application of all pertinent regulations. See
Schafrath v. Derwinski, 1 Vet. App. 589 (1991). These
regulations include, but are not limited to, 38 C.F.R. § 4.1,
which requires that each disability be viewed in relation to
its history.
The United States Court of Appeals for Veterans Claims
(Court) held in Francisco v. Brown, 7 Vet. App. 55, 58
(1994), that compensation for service-connected injury is
limited to those claims which show present disability and
held: "Where entitlement to compensation has already been
established and an increase in the disability rating is at
issue, the present level of disability is of primary
importance."
More recently, the Court determined that the above rule is
inapplicable to the assignment of an initial rating for a
disability following an initial award of service connection
for that disability. At the time of an initial award,
separate ratings can be assigned for separate periods of time
based on the facts found, a practice known as "staged"
ratings. Fenderson v. West, 12 Vet. App. 119, 126 (1999).
In exceptional cases where the schedular evaluations are
found to be inadequate, the Under Secretary for Benefits or
the Director, Compensation and Pension Service, upon field
station submission, is authorized to approve on the basis of
the criteria set forth in this paragraph an extra-schedular
evaluation commensurate with the average earning capacity
impairment due exclusively to the service-connected
disability. The governing norm in these exceptional cases
is: a finding that the case presents such an exceptional or
unusual disability picture with such related factors as
marked interference with employment or frequent period of
hospitalizations as to render impractical the application of
the regular schedular standards. 38 C.F.R. § 3.321(b)(1)
(2004).
In claims for VA benefits, VA shall consider all information
and lay and medical evidence of record. When there is an
approximate balance of positive and negative evidence
regarding any issue material to the determination of a
matter, the Secretary shall give the benefit of the doubt to
the claimant. 38 U.S.C.A. § 5107(b) (West 2002); see also
Gilbert v. Derwinski, 1 Vet. App. 49 (1990).
Under VA regulations in effect from June 10, 1999, an
examination for hearing impairment must be conducted by a
state-licensed audiologist and must include a controlled
speech discrimination test (Maryland CNC) and a puretone
audiometry test. Examinations are to be conducted without
the use of hearing aids. To evaluate the degree of
disability from defective hearing, the rating schedule
establishes 11 auditory acuity levels from Level I for
essentially normal acuity through Level XI for profound
deafness. These are assigned based on a combination of the
percent of speech discrimination and the puretone threshold
average, as contained in a series of tables within the
regulations. The puretone threshold average is the sum of
the puretone thresholds at 1000, 2000, 3000, and 4000 Hertz,
divided by four. 38 C.F.R. § 4.85 (2004).
These regulatory provisions also provide two circumstances
under which alternative tables can be employed. One is where
the puretone thresholds in any four of the five frequencies
of 500, 1,000, 2,000, 3,000 and 4,000 Hertz are 55 decibels
or greater. The second was where puretone thresholds are 30
decibels or less at frequencies of 1,000 Hertz and below, and
are 70 decibels or more at 2,000 Hertz. See 38 C.F.R. § 4.86
(2004).
III. Analysis
Applying the facts in this case to the criteria set forth
above, the Board finds that an initial compensable rating for
bilateral hearing loss is not warranted.
As set forth above, the March 2002 and September 2004 VA
audiometric evaluations showed that the veteran had an
average pure tone threshold of 48 and 53 decibels in the
right ear, respectively, with speech discrimination of 96 and
94 percent correct, respectively. He had an average pure
tone threshold of 53 and 54 decibels in the left ear,
respectively, with speech discrimination of 96 and 94 percent
correct, respectively. The only possible interpretation of
these examination results is that the veteran's hearing loss
is at level I in both ears, which equates to a zero percent
rating under 38 C.F.R. § 4.85, Diagnostic Code 6100.
Although it is unclear whether the August 2002 private
audiogram report submitted by the veteran was prepared by a
state-licensed audiologist using controlled Maryland CNC
speech discrimination test and a puretone audiometry, the
Board has nonetheless considered it. That evaluation showed
that the veteran had an average pure tone threshold of 36
decibels in the right ear, with speech discrimination of 96
percent correct. He had an average pure tone threshold of 43
in the left ear, with speech discrimination of 80 percent
correct, respectively. The only possible interpretation of
this examination is that the veteran's hearing loss is at
level I in the right ear and level III in the left ear, which
equates to a zero percent rating under 38 C.F.R. § 4.85,
Diagnostic Code 6100.
While the Board has carefully reviewed the veteran's claims
folder, there is no other probative evidence of record
showing that the veteran's hearing loss disability is more
severe for compensation purposes than demonstrated on the
March 2002, August 2002, and September 2004 audiograms.
Therefore, a compensable rating is not warranted under
38 C.F.R. § 4.85, Diagnostic Code 6100.
The Board has also considered the provisions of 38 C.F.R. §
4.86(b), but notes that the alternative tables are not for
application. As evidenced by the audiological tests
discussed above, the veteran does not exhibit puretone
thresholds of 55 or greater in any four of the five
frequencies of 500, 1,000, 2,000, 3,000 and 4,000 Hertz, nor
did he have puretone thresholds of 30 decibels or less at
frequencies of 1,000 Hertz and below, and 70 decibels or more
at 2,000 Hertz. See 38 C.F.R. § 4.86 (2004). Thus, a
compensable rating for bilateral hearing loss is not
warranted under 38 C.F.R. § 4.86(b).
In reaching this decision, the Board has considered the
contentions of the veteran, as well as his family and
friends, regarding the severity of his hearing loss and the
fact that he wears hearing aids. The Board finds that such
statements are of less probative value than the objective
results shown during audiometric testing for VA compensation
purposes and do not provide sufficient evidence on which to
award a higher rating for bilateral hearing loss. Disability
ratings for hearing impairment are derived by a mechanical
application of the rating schedule to the numeric
designations assigned after audiometric evaluations are
rendered. See Lendenmann v. Principi, 3 Vet. App. 345, 349
(1992). In this case, the numeric designations correlate to
a noncompensable disability rating.
The Board has also considered whether an extraschedular
rating is warranted with respect to the veteran's bilateral
hearing loss. Bagwell v. Brown, 9 Vet. App. 157 (1996) (the
question of extraschedular rating is a component of the
veteran's claim for an increased rating). After reviewing
the record, however, the Board finds that there is no basis
for further action on this question. While the veteran
testified to the effect that his hearing loss disability
impacted his employment, there is no objective evidence of
record showing that the regular schedular criteria are
inadequate to evaluate his disability. Absent any objective
evidence that his hearing disability is productive of marked
interference with employment, necessitates frequent
hospitalization, or that the manifestations associated with
this disabilities are unusual or exceptional, referral for
consideration of an extra-schedular rating is not warranted.
Shipwash v. Brown, 8 Vet. App. 218, 227 (1995).
In summary, based on a review of the entire record, the Board
finds that the veteran's bilateral hearing loss does not rise
to the level required for the assignment of an initial
compensable rating. As the preponderance of the evidence is
against the claim, the benefit of the doubt rule is not for
application. 38 U.S.C.A. § 5107(b) (West 2002); see also
Gilbert v. Derwinski, 1 Vet. App. 49 (1990).
ORDER
Entitlement to an initial compensable rating for bilateral
hearing loss is denied.
____________________________________________
James L. March
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs